This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 KEN KETCHERSIDE, 3 Worker-Appellant, 4 v. No. 33,454
5 LOVELACE REHAB HOSPITAL and 6 CCMSI,
7 Employer/Insurer-Appellees.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 9 Shanon S. Riley, Workers’ Compensation Judge
10 Rod Dunn 11 Albuquerque, NM
12 for Appellant
13 Camp Law, LLC 14 Minerva Camp 15 Albuquerque, NM
16 for Appellees 17 MEMORANDUM OPINION 18 ZAMORA, Judge. 19 {1} Ken Ketcherside (Worker) filed for workers’ compensation benefits alleging 20 that he was injured while working for Lovelace Rehab Hospital (Employer). The
2
1 workers’ compensation judge (WCJ) found that Worker’s claim was not compensable 2 because Worker failed to establish that any of his claimed disabilities were a natural 3 and direct result of work related injuries. We affirm. 4 BACKGROUND 5 {2} Worker was employed as a registered nurse with Employer and was regularly 6 scheduled to work three consecutive days. Worker had a history of back pain and 7 work related injuries. Worker routinely traded shifts, so that he could work two 8 consecutive days instead of three, which allowed him to rest his back. Worker was 9 scheduled to work April 2, 2011, through April 4, 2011. He attempted to trade shifts, 10 but was not permitted to do so. Worker worked three consecutive days; April 2, 2011, 11 April 3, 2011, and April 4, 2011. 12 {3} On April 6, 2011, Worker was seen at Manzano Medical Clinic (MMC) and 13 reported that toward the end of his shift on April 4, 2011, he experienced low back 14 pain and pain radiating into his left leg. Worker also completed an employee 15 accident/injury report indicating that the exacerbation of his back injuries occurred 16 because he was “forced to work too many days in a row.” Worker was released back 17 to work on light duty and was treated by Dr. John Henry Sloan (Sloan) at MMC 18 through May 2011. In December 2011 Worker saw Dr. Thomas Whalen (Whalen) 19 concerning ongoing back and leg pain.
3
1 {4} Worker was notified that he would not receive workers’ compensation benefits 2 through Lovelace. Worker’s claim for benefits was denied because there was not a 3 specific event to which his injury could be attributed. Worker filed a complaint with 4 the Workers’ Compensation Administration. A hearing was held on the merits of 5 Worker’s claim and the WCJ found that Worker had failed to establish that his 6 disabilities resulted from work related injuries sustained on April 2, 2011, April 3, 7 2011, or April 4, 2011. The WCJ concluded that Worker’s claim for benefits was not 8 compensable. This appeal followed. 9 DISCUSSION 10 {5} The Workers’ Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 11 (1929, as amended through 2013), provides that an injured worker is entitled to 12 workers’ compensation benefits if “at the time of the accident, the employee is 13 performing service arising out of and in the course of his employment[.]” Section 52- 14 1-9(B). “ ‘Arising out of’ and ‘in the course of employment’ are two distinct 15 requirements.” Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2014-NMCA- 16 019, ¶ 8, 317 P.3d 866 (quoting Hernandez v. Home Educ. Livelihood Program, Inc., 17 1982-NMCA-079, ¶ 9, 98 N.M. 125, 645 P.2d 1381). In order for a claimant to be 18 entitled to compensation, both of the requirements for “arising out of” and “in the
4
1 course of employment” must be met. Garcia v. Homestake Mining Co., 1992-NMCA- 2 018, ¶ 6, 113 N.M. 508, 828 P.2d 420 (internal quotation marks and citation omitted). 3 {6} An injury occurs in the course of employment, if it “takes place within the 4 period of employment, at a place where the employee may reasonably be, and while 5 the employee is reasonably fulfilling the duties of employment or doing something 6 incidental to it.” Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, ¶ 11, 130 N.M. 7 524, 27 P.3d 1011 (internal quotation marks and citation omitted). In the present case, 8 the parties do not dispute that Worker’s injury occurred in the course of his 9 employment. Thus, the issues presented in this appeal are related to the WCJ’s 10 determination that Worker failed to show that his injury arose out of his employment. 11 {7} For an injury to arise out of employment, the injury must have been caused by 12 a risk “reasonably incident to claimant’s work[,]” and the injury must have “flowed 13 from the risk as a rational consequence.” Flores v. McKay Oil Corp., 2008-NMCA- 14 123, ¶ 10, 144 N.M. 782, 192 P.3d 777 (internal quotation marks and citation 15 omitted). “When the employer contests the causal connection between the accidental 16 injury and the disability, [the] worker must present medical testimony that shows the 17 causal connection to a medical probability.” Feese v. U.S. W. Serv. Link, Inc., 1991- 18 NMCA-121, ¶ 10, 113 N.M. 92, 823 P.2d 334; see § 52-1-28(B) (“In all cases where 19 the employer or his insurance carrier deny that an alleged disability is a natural and
5
1 direct result of the accident, the worker must establish that causal connection as a 2 probability by expert testimony of a health care provider . . . testifying within the area 3 of his expertise.”). 4 {8} Here, Worker challenges the WCJ’s determination that he failed to establish a 5 causal connection between his claimed disabilities and a work related accident. 6 Specifically, Worker argues that the WCJ erred in finding that he failed to establish, 7 within a reasonable degree of medical probability, that his claimed disabilities were 8 a natural and direct result of work related injuries during the relevant time. 9 Standard of Review 10 {9} We review the findings of the WCJ under a whole record standard of review. 11 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. 12 Whole record review involves a review of all the evidence bearing on the WCJ’s 13 decision in order to determine if there is substantial evidence to support the result. 14 Leonard v. Payday Prof’l., 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177. “We 15 view the evidence in the light most favorable to the decision.” Dewitt v. Rent-A-Ctr., 16 Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Substantial evidence on 17 the record as a whole is evidence demonstrating the reasonableness of an agency’s 18 decision,” and we will not “reweigh the evidence nor replace the fact finder’s 19 conclusions with our own.” Id. “Where the testimony is conflicting, the issue on
6
1 appeal is not whether there is evidence to support a contrary result, but rather whether 2 the evidence supports the findings of the trier of fact.” Tom Growney Equip. Co. v. 3 Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320 (internal quotation marks 4 and citation omitted). 5 Substantial Evidence Supports the WCJ’s Decision 6 Worker’s Testimony 7 {10} Worker testified that he had pre-existing back and leg pain resulting from 8 several back injuries dating back to 2002. Worker explained that he was upset about 9 having to work a third consecutive shift on April 4, 2011, because he was concerned 10 that it would cause him increased back pain. Worker stated that he experienced a 11 sudden sharp pain in his back and leg after moving a patient up in bed without 12 assistance. This testimony was consistent with testimony Worker gave during his 13 deposition; that toward the end of Worker’s shift on April 4, 2011, he was moving a 14 heavy patient up in bed and felt a sharp pain in his back and shooting down his leg. 15 Sloan’s Testimony 16 {11} In lieu of hearing testimony, Sloan’s deposition testimony was admitted as an 17 exhibit. Sloan testified that he had treated Worker for back injuries and back pain 18 intermittently from 2004 to 2011. Worker had an MRI in January 2005 which revealed 19 a small to medium sized disc herniation. A second MRI of Worker’s lumbar spine,
7
1 performed in January 2006 showed the same degree of herniation. In 2009, Worker 2 was treated for severe back and radiating leg pain that he experienced after a shift at 3 work. 4 {12} Worker was not seen at MMC between April 2009 and April 2011. When 5 Sloan saw Worker on April 29, 2011, he asked Worker if something specific had 6 happened on April 4, 2011, to trigger his pain. Worker attributed the pain to working 7 three consecutive days. 8 {13} Because Worker could not identify specifically what caused the pain, Sloan 9 ordered another MRI of Worker’s spine and a nerve conduction study (EMG) to assist 10 in diagnosis. The MRI, performed in May 2011 showed a small disc herniation 11 consistent with Worker’s previous MRI results. The MRI did not show a change in 12 Worker’s condition from the previous MRIs in 2005 and 2006. The EMG revealed no 13 nerve abnormalities, and did not indicate a recent injury. Sloan concluded that 14 Worker’s increased pain was not a result of a work related injury. Sloan attributed 15 Worker’s symptoms to Worker’s pre-existing discogenic problem and to the fact that 16 Worker was “deconditioned.” 17 {14} When asked if Worker’s symptoms could have been caused by moving a patient 18 up in bed, as Worker described in his deposition, Sloan testified that it would be 19 possible to sustain a back injury in that scenario. However, Sloan testified that in
8
1 Worker’s case, because there had been no change in the MRI results and no 2 abnormalities in the EMG, such a scenario would not explain the pain in Worker’s leg. 3 {15} Worker’s counsel showed Sloan a copy of the letter denying Worker’s claim 4 for workers’ compensation benefits. The letter indicated that Worker’s claim was 5 denied because there was not a specific event that could be targeted as the cause of 6 Worker’s back pain. Worker’s counsel noted that Sloan had received a copy of the 7 letter and asked Sloan if he had relied on the letter’s language regarding the absence 8 of a “specific event” in determining that Worker’s injury was not work related. Sloan 9 testified that his conclusion was based on the absence of a specific event, along with 10 several other factors including Worker’s previous back injuries, Worker’s discogenic 11 disease, the unremarkable test results after Worker’s April 4, 2011 shift, and the fact 12 that Worker was deconditioned. 13 Whalen’s Testimony 14 {16} Whalen’s deposition testimony was also offered as an exhibit in lieu of hearing 15 testimony. Whalen testified that he saw Worker once in December 2011. According 16 to Whalen, Worker reported having a history of back injuries and intermittent back 17 pain, which had subsided prior to April 2011. Worker reported that in April 2011 he 18 experienced an acute onset of severe back pain and pain radiating down his leg after 19 working three consecutive days, and that the pain had remained at an elevated level.
9
1 Worker also reported that he had not previously had pain going into his leg. Whalen 2 reviewed Worker’s May 2011 MRI and some of Worker’s medical records from 3 Sloan. Whalen testified that he did not obtain or review Worker’s medical records 4 related to Worker’s previous back injuries in 2004, 2005, or 2006. 5 {17} Whalen testified that assuming that Worker’s back pain had been controlled, 6 and until Worker suddenly experienced an acute onset of back and leg pain after a 7 change in his work pattern, then, Worker’s symptoms could be attributed to his work 8 duties. Whalen agreed that moving or lifting a patient as Worker described in his 9 deposition was consistent with Worker’s injuries and symptoms. However, Whalen 10 confirmed that during his visit, Worker reported experiencing acute pain as a result 11 of working three consecutive days, and did not mention moving or lifting a patient. 12 {18} Whalen diagnosed Worker with a longstanding history of low back pain and felt 13 that further diagnostic testing was needed. Whalen testified that the disc herniation 14 visible on Worker’s MRI could be the result of a chronic longstanding condition or 15 could be caused by a specific injury. However, based on Worker’s report, that he had 16 not experienced leg pain prior to April 2011, Whalen felt that Worker’s condition was 17 acute, or related to a specific injury. When asked how his opinion regarding the cause 18 of Worker’s condition would change knowing that Worker had previously 19 experienced radiating leg pain, Whalen replied that evidence of a pattern of radiating
10
1 leg pain would indicate a previous disc injury and a chronic disc problem rather than 2 a recent injury. Considering Worker’s pre-existing conditions and the lack of 3 conclusive testimony regarding the cause of Worker’s increased pain, we conclude 4 that WCJ’s determination that Worker failed to meet his burden under Section 52-1- 5 28, is supported by substantial evidence. 6 {19} Worker argues that the WCJ’s denial of his claim was erroneously based on 7 Sloan’s testimony that Worker’s symptoms were not work related. According to 8 Worker, Worker’s initial claim denial, which cited the absence of a specific event to 9 which Worker’s injury could be attributed, misinformed Sloan about the legal 10 requirements under the Workers’ Compensation Act. Worker contends that Sloan then 11 based his testimony regarding the causation of Worker’s condition, on his mistaken 12 belief that an injury is not work related if there is not a specific injurious event. And, 13 Worker argues, because Sloan’s testimony was based on a fundamental 14 misapprehension of the law, it cannot “provide evidence on the issue of causation.” 15 Worker urges this Court to disregard Sloan’s testimony and reverse the WCJ’s 16 decision based on Whalen’s testimony alone. We decline to do so. 17 {20} Our review of the record reveals no support for Worker’s assertions. Sloan 18 testified that his opinion that Worker’s condition was not causally connected to his 19 work was based on several factors including: Worker’s history of back injuries and
11
1 treatment for back and radiating leg pain, Worker’s MRI and EMG results which 2 showed no evidence of a recent injury, Worker’s report that his pain increased after 3 working three consecutive days, and Worker’s physical deconditioning. Sloan also 4 testified that his opinion was not based on the denial letter’s language regarding the 5 absence of a specific event and Worker did not offer any evidence to controvert this 6 testimony. 7 {21} Moreover, in asserting that the WCJ’s decision was based solely on Sloan’s 8 testimony regarding the lack of a specific event, Worker misconstrues the basis of the 9 WCJ’s decision. The WCJ made several findings in support of her conclusion that 10 Worker failed to establish a causal connection between his disabilities and a work 11 related injury. The WCJ did find that Sloan remained steadfast in his opinion that 12 Worker’s symptoms were not work related. However, the WCJ also found that 13 Worker was inconsistent in his reporting of the injury, initially reporting to both Sloan 14 and Whalen that his symptoms developed after working three straight days and later 15 testifying that he injured his back assisting a patient. The WCJ further found that 16 Whalen’s testimony regarding the cause of Worker’s injuries was not conclusive. 17 {22} To the extent that Worker is asking this Court to re-weigh the medical 18 testimony in this case, we decline to do so. See Dewitt, 2009-NMSC-032, ¶ 22 19 (“[W]eighing evidence and making credibility determinations are uniquely within the
12
1 province of the trier of fact, we will not reweigh the evidence nor substitute our 2 judgment for that of the WCJ, unless substantial evidence does not support the 3 findings.”); see also Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 4 ¶ 21, 120 N.M. 734, 906 P.2d 266 (“Generally, when there is conflicting medical 5 testimony concerning causation, the reviewing court will defer to the finder of fact” 6 because “it is the WCJ’s prerogative to determine the weight to be given to the 7 testimony.” (alteration, internal quotation marks, and citation omitted)). 8 CONCLUSION 9 {23} For the foregoing reasons, we affirm. 10 {24} IT IS SO ORDERED.
11 12 M. MONICA ZAMORA, Judge
13 WE CONCUR:
14 15 TIMOTHY L. GARCIA, Judge
16 17 J. MILES HANISEE, Judge